SS and AH (Costs)

[2010] FamCAFC 233

FAMILY COURT OF AUSTRALIA

SS & AH (COSTS) [2010] FamCAFC 233

FAMILY LAW - APPEAL – Application for costs – Where appeals were dismissed but had some merit – No order as to costs

Family Law Act 1975 (Cth)

APPELLANT: SS

RESPONDENT: AH

INDEPENDENT CHILDREN’S LAWYER: Jan Kingston

FILE NUMBER: BRF 1070 of 1999

APPEAL NUMBER:	NA	94	of	2008
NA	95	of	2008
NA	51	of	2009

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Perth

JUDGMENT OF: Boland, Thackray & O’Ryan JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE:	30 September 2008
29 September 2008
10 June 2009

LOWER COURT MNC:	[2008] FamCA 821
[2008] FamCA 823
[2009] FamCA 519

REPRESENTATION

COUNSEL FOR THE APPELLANT: Self represented litigant

COUNSEL FOR THE RESPONDENT: Self represented litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Drysdale

SOLICITOR FOR THE APPLICANT: Self represented litigant

SOLICITOR FOR THE RESPONDENT: Self represented litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The application of the Independent Children’s Lawyer for costs be dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym SS & AH (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:       NA 94  of 2008
  NA 95  of 2008
  NA 51  of 2009
File Number:            BRF 1070  of 1999

SS

Appellant

And

AH

Respondent

REASONS FOR JUDGMENT

1. On 5 February 2010 we delivered reasons in relation to three appeals by the mother against orders in proceedings between the mother and the father.

2. We determined that two of the appeals had fallen away by the conclusion of argument, leaving only Appeal NA 94 of 2008 (“the substantive appeal”). In that appeal the mother sought to challenge interim orders which:

   ·discharged an earlier order for joint parental responsibility;

   ·suspended the children’s time with the mother; and

   ·prevented the mother from initiating communication with the children (although the children were able to initiate communication with her). 

3. The majority of the Full Court (Boland and Thackray JJ) found that whilst there was merit in some of the propositions advanced on behalf of the mother, appellate interference was not warranted.  O’Ryan J dissented and would have allowed the substantive appeal. 

4. The orders of the Full Court dismissed all three appeals and laid down a timetable for the filing of submissions in support of any application for costs.

5. The Independent Children’s Lawyer (“the ICL”) filed written submissions on 26 February 2010 seeking an order that the mother pay the ICL’s costs fixed at $13,290.40 or such other sum as the Full Court may consider appropriate.  The mother filed submissions in response on 11 March 2010.  In those submissions, the mother sought that the Full Court stay consideration of the costs application pending the outcome of her application for special leave to the High Court.  On 18 June 2010 the High Court dismissed the mother’s application for…